State on behalf of Jade K. v. Luke K. ( 2013 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
STATE ON BEHALF OF JADE K. V. LUKE K.
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).
STATE ON BEHALF OF JADE K., A MINOR CHILD, APPELLEE,
V.
LUKE K., APPELLANT, AND CHAZ G., APPELLEE.
Filed November 5, 2013. No. A-12-1144.
Appeal from the District Court for Saline County: VICKY L. JOHNSON, Judge. Affirmed.
Marc J. Odgaard, of Hanson, Hroch & Kuntz, for appellant.
Mark J. Krieger and Terri M. Weeks, of Bowman & Krieger, for appellee Chaz G.
INBODY, Chief Judge, and IRWIN and RIEDMANN, Judges.
INBODY, Chief Judge.
INTRODUCTION
Luke K. appeals the order of the Saline County District Court regarding his complaint to
establish custody and visitation of his biological child, Jade K., born as a result of an on-and-off
relationship with Jade’s mother, Chaz G. For the reasons that follow, we affirm the order of the
district court in its entirety.
STATEMENT OF FACTS
Luke and Chaz are the biological parents of Jade, who was born in 2001. The two were in
a relationship which continued on and off over the course of several years. Luke, Chaz, and Jade
lived together until Jade was about 8 months old. Thereafter, Chaz and Jade lived with Chaz’
mother. In 2007, Chaz met Terrance Hamm and the two began a relationship and lived together
in DeWitt, Nebraska. In October 2009, Hamm and Chaz became engaged, but have not set a date
to be married. In 2010, Hamm, Chaz, and Jade moved into the home of Hamm’s father in
Beatrice, Nebraska.
-1-
Also in 2010, Chaz voluntarily terminated her employment on a farm, where she was
employed as a farrowing manager working full time and making $10.50 per hour, in order to
attend a community college to pursue a nursing career. Chaz testified that at the time of trial, she
was not enrolled in classes for that quarter because the classes she needed to take were not
available, but that she had taken classes in the previous quarters, some of which classes were on
campus and others that were online courses. Chaz plans on finishing her education at “UNMC”
in Lincoln, Nebraska, and will commute from her home in Beatrice so that Jade can continue to
live and attend school there.
For the first 6 years of Jade’s life, when Luke and Chaz were not together, Luke had
visitation with Jade on Mondays and Wednesdays, and every other Saturday and Sunday.
However, Chaz did not allow overnight visits. When Jade turned 6 years old, Luke had visitation
on Wednesdays and every other Friday, even when it was not his weekend, and weekend
visitation was Saturday morning through Sunday afternoon.
In March 2011, Luke filed a complaint to establish custody, visitation, and a dependency
exemption. The complaint indicates that in August 2002, the district court established that Jade’s
biological parents were Luke and Chaz, and that Luke was ordered to pay $299 per month in
child support and provide health insurance for Jade. Luke alleged that Chaz had neglected the
educational needs of Jade and requested custody of Jade or, in the alternative, that the parties be
awarded joint custody. Chaz filed an answer and counterclaim, denying Luke’s allegations,
seeking custody of Jade, and also alleging that since the entry of the initial child support order, a
material change in circumstance has occurred such that Luke’s income had increased
dramatically while her income had decreased.
At the time of trial, Jade was 11 years old. Jade attends the Tri County school and has
attended there since she was in kindergarten. Chaz testified that Jade is in the fifth grade, but is
learning at the fourth grade level in language, reading, and spelling classes at the
recommendation of Jade’s teachers, and is doing well. Chaz explained that in the past, Jade had
difficulty paying attention and completing assignments. Chaz testified that at first she thought
Jade was just “being a kid,” but that now she understands Jade has attention deficit hyperactive
disorder (ADHD). Jade was diagnosed with ADHD in 2011.
Dr. Adriane Schemm, a psychologist specializing in pediatric psychology, testified that
she evaluated Jade and diagnosed Jade with ADHD in March 2011. Dr. Schemm testified that
initially, she observed that Jade was delayed and had trouble focusing. Dr. Schemm
recommended that Jade meet with her primary care physician for ADHD medication and
suggested that Luke and Chaz contact Jade’s school with the ADHD testing results. Dr. Schemm
also encouraged Luke and Chaz to discuss the possibility of continued therapy in order to help
with transitions, structure, positive reinforcement, and regulation.
Jade takes medication for her ADHD and speaks with the school counselor as the need
arises. Chaz testified that Jade takes the medication only when she is at school, because the focus
is for her school performance, and that Chaz wants Jade to take medication only when she has to,
because of the side effects from the medication. This decision is supported by Jade’s family
physician, who prescribes the medication.
There was significant emphasis placed on Jade and her dental health history. Chaz
testified that her family has a history of genetic dental problems and that she did not take Jade to
-2-
the dentist as soon, or as much, as she should have. Chaz testified that when Jade indicated her
tooth hurt, Chaz took Jade to the dentist, and that Chaz had not done so previously because Jade
brushed her teeth and did not appear to have cavities. Jade’s pediatric dentist testified that Jade
had significant work done in 2007, when she was 6 years old, which included fillings, a crown,
and a pulpotomy. The dentist testified that Jade had tooth decay, but that the treatment, while
dramatic for a young child, was not uncommon. In 2010, Jade returned and needed work on
seven teeth. Chaz indicated that there was a substantial dental bill from the work done on Jade
which she could not pay and that she had not received any money from Luke. Luke testified that
he did not feel like he needed to pay any money for the $2,000 dental bill because he always
made sure that when Jade was at his house, she brushed her teeth. Luke also testified that
although he had not paid for the dental bill, he had paid for other things above the $299 per
month in child support, such as other doctor bills, softball equipment, and clothing for Jade for
his home.
In 2011 and 2012, in addition to the visitation mentioned above, Jade had 4 weeks of
summer visitation scheduled with Luke. The summer of 2011 was split into 2-week blocks, with
1 week in between. In the summer of 2012, 4 weeks of visitation was scheduled with Chaz
having visitation every other weekend. However, Chaz testified that she had limited Luke’s
visitation with Jade to 2 weeks during the summer of 2012, because she and Luke had agreed
upon a parenting plan and he then refused to sign it. Looking back at the decision, Chaz testified
that it was not a good one.
Chaz testified that she had been Jade’s primary caregiver her whole life and was engaged
and involved with Jade. Chaz testified that since Jade was a baby, Luke had not been to or
scheduled doctor appointments or immunizations, and that Luke did not give her support until
2002, when Jade was 1 year old. Further, until 2011, she had not sought out an increase in the
$299 per month child support ordered by the court. But, Chaz testified that Luke was capable of
taking care of Jade and that the two have a loving relationship. Chaz also testified that since
Luke was married, there has been a change in his demeanor and, for the first time, he had asked
for additional parenting time. Chaz testified that Jade was referred to Dr. Schemm for evaluation
by Luke’s wife.
Chaz testified that her fiance, Hamm, was employed at the Lincoln Airport as a
firefighter with a schedule of 24 hours on and 48 hours off. Hamm is also active with the U.S.
Army Reserve at the Nebraska Air National Guard and will reenlist when his commitment is
complete. Hamm was deployed in Afghanistan from 2008 to 2009, and is also now taking classes
at a community college for paramedic and fire protection degrees. Chaz testified that Hamm is
active in Jade’s life, which includes disciplining her when necessary. Hamm testified that he and
Jade have a good relationship. Hamm indicated that he and Chaz decided to move into his
father’s home in Beatrice to assist him with his health problems. Hamm and Chaz agreed to take
care of the large home and property for his father in lieu of paying him rent.
Chaz’ mother testified that Jade was smart, funny, creative, loving, and caring. Jade and
Chaz lived with Chaz’ mother in her home in DeWitt for the first 7 years of Jade’s life. Chaz’
mother witnessed Chaz caring for Jade by fixing meals, playing with her, taking care of laundry,
and taking Jade to daycare because Chaz was working full time at that point. Chaz’ mother
-3-
testified that Chaz was involved with Jade’s schooling and discipline. Chaz’ mother also testified
that Luke was regular with his visitation with Jade.
Luke now lives in Crete, Nebraska, with his wife and 13-year-old stepdaughter. Luke
works full time, earning $16.50 per hour, and is also a licensed emergency medical technician
and volunteer with the Crete Fire Department. Luke testified that if he were to have custody of
Jade, his wife would provide most of the caregiving during the day, while he was at work; that
Jade would attend school in Crete; and that they would also coordinate for Jade to attend
additional counseling or therapy to address the ADHD issues. Luke testified that Chaz had been
Jade’s primary caretaker for Jade’s entire life, but that he was involved with Jade by attending
school conferences and discussing issues with teachers. Luke testified that when he has visitation
with Jade, he assists her with homework, helps her practice softball, and plays games with her, in
addition to participating in various other activities with her. Luke testified that Chaz and Jade
have a good relationship and that Jade is doing better in school, but that he has issues with Jade’s
hygiene and school performance. Luke also testified that with Chaz, Jade is not as safe as she
could be. Luke testified that Jade and his stepdaughter get along and that his stepdaughter picks
on Jade, but that it is “nothing excessive” beyond the usual sister relationship.
Luke testified that over the course of Jade’s life, he has lived in eight different places
with five different people and has held five different jobs--some of which employment was not
voluntarily terminated. Chaz testified that Jade was in school before Luke had overnight
visitations with her, because of his unstable living environments, and that prior to the summer of
2011, he had never requested any additional summer visitation.
The district court found that in August 2002, paternity was established and Luke was
ordered to pay $299 per month in child support for Jade, in addition to health care expenses and
50 percent of childcare expenses. The district court found that custody was not awarded through
those proceedings, but that Chaz has had custody of Jade since that time. The district court found
that, as set forth above, Luke had exercised parenting time with Jade, which included that Jade
had not had any overnight visitations with Luke until she was 6 years old, because he was living
with other individuals where Jade did not have a room, and that those homes “tended to be party
houses.” Further, the court found that until recently, Luke had not exercised any holiday or
summer parenting time.
The district court found that both Luke and Chaz were now in different relationships,
with Chaz being engaged to Hamm and Luke now married with a 13-year-old stepdaughter. The
court found that Chaz and Hamm were both students, with Chaz studying nursing and Hamm
studying emergency firefighting. The court found that Luke had lived in numerous residences
with lots of people and now he worked in Crete and lived there with his wife, who receives
Social Security disability benefits.
The court found that Jade had always been enrolled at the Tri County school; that she had
begun to experience difficulties 3 years prior, when the school district suggested additional
programs for Jade; and that Jade underwent an evaluation which diagnosed her with ADHD. The
court found that Jade was progressing in school and with her difficulties. The court also
discussed that Jade had experienced significant issues with a lack of dental care, which was due
to both parents, but did not approach abuse, neglect, or inappropriate contact.
-4-
The district court found that both parents were good and appropriate parents, that Hamm
left the court with a positive impression, and that Luke’s wife appeared to be the advocate for
Jade’s ADHD evaluation, although she did not testify at trial. The court found there was no
doubt that Luke loves Jade and that she feels the same; however, Luke had been passive
regarding his responsibility to someone other than himself and he delegated those first 11 years
of Jade’s life to Chaz, and even now to his wife, who provides most of the day-to-day care of
Jade. The court found that if Luke were awarded custody, he would move Jade to Crete, and that
Luke did not understand the difficulty that changing Jade’s routine would cause.
The court concluded that, based upon all of the factors and the parties’ previous
agreement that they share joint legal custody, the parties be awarded joint legal custody and that
physical custody of Jade be placed with Chaz, supported mostly by the undisputed facts that
Chaz had been Jade’s primary caretaker for 11 years and that introducing disruption would not
be in her best interests. The court ordered Luke to pay $523 per month in child support and
awarded Luke the dependency exemption for 2012, 2013, and 2014, and every even-numbered
year thereafter. The court also entered into a parenting plan and financial plan. It is from this
order that Luke has timely appealed.
ASSIGNMENTS OF ERROR
On appeal, Luke assigns that the district court erred by placing physical custody of Jade
with Chaz, by limiting his summer visitation with Jade to 4 weeks, and by failing to award him a
child support abatement during this summer visitation.
STANDARD OF REVIEW
Child custody determinations, and visitation determinations, are matters initially
entrusted to the discretion of the trial court, and although reviewed de novo on the record, the
trial court’s determination will normally be affirmed absent an abuse of discretion. Rosloniec v.
Rosloniec, 18 Neb. App. 1, 773 N.W.2d 174 (2009).
ANALYSIS
Physical Custody.
Luke argues that the district court erred in finding that it was in the best interests of Jade
to award Chaz physical custody of Jade. The standard for determining custody is parental fitness
and the child’s best interests. Gress v. Gress, 271 Neb. 122, 710 N.W.2d 318 (2006). Nebraska’s
Parenting Act states that it is in the best interests of the child to have a “safe, stable, and
nurturing environment.” Neb. Rev. Stat. § 43-2921 (Reissue 2008). To determine the best
interests of a child, a court must consider, at a minimum: (1) the relationship of the minor child
to each parent prior to the commencement of the action or any subsequent hearing; (2) the
desires and wishes of the minor child if of an age of comprehension regardless of chronological
age, when such desires and wishes are based on sound reasoning; (3) the general health, welfare,
and social behavior of the minor child; and (4) credible evidence of abuse inflicted on any family
or household member. Other pertinent factors include the moral fitness of the child’s parents,
including sexual conduct; respective environments offered by each parent; the age, sex, and
health of the child and parents; the effect on the child as a result of continuing or disrupting an
-5-
existing relationship; the attitude and stability of each parent’s character; and the parental
capacity to provide physical care and satisfy educational needs of the child. Robb v. Robb, 268
Neb. 694, 687 N.W.2d 195 (2004). When the evidence conflicts, an appellate court considers,
and may give weight to, the fact that the trial judge heard and observed the witnesses and
accepted one version of the facts rather than another. Hajenga v. Hajenga, 257 Neb. 841, 601
N.W.2d 528 (1999).
This case is not the typical custody case which comes before the court on appeal, because
most, if not all, of the facts of this case are undisputed. Luke and Chaz are Jade’s biological
parents, although their relationship with each other was sporadic. Chaz was Jade’s primary
caregiver for her entire 11 years of life prior to trial, has continually taken care of Jade’s needs,
and has facilitated a visitation schedule between Luke and Jade throughout all of the years as it
was safe and appropriate for Jade. Jade has a loving relationship with each parent, and also has a
relationship with each of the parties’ respective significant others. Each party testified that, but
for a few minor issues, both were capable of having custody of Jade and are clearly fit parents.
The record indicates that Jade has been diagnosed with ADHD and is currently taking
medication while in school to assist with behavior and focus. Jade was not a bad student before
the diagnosis, but since the diagnosis has improved even more and was described more than once
by various witnesses as intelligent, well-rounded, happy, and active. Both parents have taken an
active role in Jade’s school and extracurricular activities, and both care very much for her
well-being. The main issue presented at trial was that of Jade’s poor dental health in 2007 and
2010. Chaz admitted that she had not taken Jade for dental checkups because she believed there
were no problems and that that decision was not a good one, although there were also issues with
Chaz’ ability to pay for that dental work. Luke took great issue with Jade’s dental issues, but
failed to make any appointments himself, and testified that he did not feel like he had to pay for
the dental work because when Jade was in his care, she brushed her teeth. Further, Jade’s dentist
testified that it was not uncommon for children to undergo treatment for issues with cavities such
as Jade had exhibited.
Testimony given by Jade’s psychologist indicates that structure is an important part of
addressing and treating the behavior of children diagnosed with ADHD. Jade has attended the
Tri County school since she began attending school in kindergarten and is enrolled in several
programs which continue to assist her with her struggles in school. Jade has the opportunity to
seek counseling with the school counselor if additional counseling becomes necessary, and the
record indicates that both parents follow through with her medication as directed by the
prescribing physician.
Thus, upon our de novo review of the record, we cannot say that the district court abused
its discretion by awarding Chaz physical custody of Jade. Although both parties are fit parents
and have the structure to provide Jade with a safe home, Chaz has been Jade’s primary caregiver
for her entire life and there is nothing in the record to suggest that the continuance of that is not
in Jade’s best interests.
Extended Summer Visitation.
Luke argues that the district court abused its discretion by limiting his summer visitation.
The district court awarded Luke 4 weeks of summer visitation. Luke argues that he is capable of
-6-
taking good care of Jade and that he is sincere in wanting to have her for an extended period of
time.
We do not disagree that the record indicates neither party disputes that Luke is capable of
taking care of Jade, that they are bonded, and that they care for each other. However, the record
also indicates that Jade’s ADHD diagnosis requires structure and stability and that it was not
until 2011 when Luke had begun to have Jade for any extended visitation. The record indicates
that Luke did not request any extended visitation until the summer of 2011, when he had 4 weeks
of visitation, broken into 2-week blocks. In 2012, Luke had 4 weeks of visitation with Jade
scheduled. Testimony indicates that after 2 weeks of that visitation, Chaz requested that the
visitation end early. Chaz admitted that she discontinued the visitation in 2012, because they had
no formal agreement for parenting time and Luke had refused to sign the mediated parenting
plan. Chaz admitted that was not the appropriate action to take. The district court found that
Chaz was manipulative in her actions, but that Luke did not ask for any further visitation and
gave little weight to the incident.
Thus, based upon our de novo review of the record, we cannot say that the district court
abused its discretion by awarding Luke 4 weeks of extended summer visitation time in the
parenting plan.
Child Support Abatement.
Luke argues that the district court erred by failing to give him a child support abatement
for the 4 weeks of summer visitation, because during that time, Chaz will be “relieved of all of
those costs that she might otherwise incur and for which child support is paid.” Brief for
appellant at 34.
The Nebraska Child Support Guidelines provide in relevant part:
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. This particular provision of the child support guidelines allows the
reduction in child support, but does not mandate it. There is no indication in this record that Luke
ever requested an abatement in his child support obligation. However, even if he had requested a
child support abatement, it is within the district court’s discretion. Based upon the record in this
case, we find no abuse of discretion by the district court in failing to give Luke a child support
abatement for his 4 weeks of extended summer visitation.
CONCLUSION
In sum, upon our de novo review of the record, we find that the district court did not
abuse its discretion in its determinations regarding child custody, summer visitation, and by not
-7-
awarding Luke a child support abatement for his 4 weeks of summer visitation. Therefore, we
affirm.
AFFIRMED.
-8-