Olander v. McPhillips

Decision Date30 June 2020
Docket NumberNo. A-19-545.,A-19-545.
Citation947 N.W.2d 578,28 Neb.App. 559
Parties Shaun P. OLANDER, appellee, v. Brandy A. MCPHILLIPS, appellant.
CourtNebraska Court of Appeals

John F. Eker III, for appellant.

Justin A. Roberts, of Lustgarten & Roberts, P.C., L.L.O., Omaha, for appellee.

Moore, Chief Judge, and Riedmann and Welch, Judges.

Riedmann, Judge.

INTRODUCTION

Brandy A. McPhillips appeals the order of the district court for Douglas County which granted Shaun P. Olander's complaint to modify a decree of paternity and parenting plan and denied her motion to vacate the modification order. We conclude that the district court's failure to hold an evidentiary hearing on the record on the issue of child support requires that we reverse, and remand for further proceedings on that issue, and we reverse the revised transportation provision and remand the cause with instructions to vacate and reinstate the prior transportation provision. As to the remaining issues, we affirm.

BACKGROUND

Olander filed a complaint for paternity, a copy of which is not included in our record. It appears that trial was set for December 3, 2013; however, prior to trial, the parties reached an agreement that was read into the record. Our bill of exceptions does not contain a transcription of that December 3 hearing. On January 7, 2014, McPhillips filed a motion for clarification or to alter or amend the decree. In response, Olander filed a motion to enter a decree of paternity which had been prepared by his attorney, alleging that McPhillips refused to approve the agreed-upon decree. Following a hearing on January 15, a transcription of which is also not included in our record, the court entered an order requiring certain changes to the decree and clarifying and amending other portions. Specifically, the court ordered Olander to include the following language in the decree of paternity: "It is further ordered that beginning Saturday, January 25, 2014, and every fourth Saturday thereafter, [Olander's] mother shall have a superior right of first refusal versus [McPhillips] during times in which [Olander] is at his employment." A decree of paternity was entered the same day in February 2014, with approval signatures from both McPhillips and Olander. The decree incorporated the parties’ agreed-upon parenting plan. We will refer to the court's decree of paternity and the February 2014 order collectively as the "Paternity Decree."

The Paternity Decree established that the parties were to have joint physical and legal custody of the parties’ minor child, Macklin Olander, and required Olander to pay $515 per month in child support to McPhillips, among other provisions. In March 2014, the district court issued a nunc pro tunc order, stating that the parenting plan attached to the Paternity Decree was an earlier draft, and not the final version agreed to by the parties. The nunc pro tunc order attached a parenting plan (Parenting Plan) that both parties agreed was the true agreement.

The Parenting Plan established a 2-week parenting time schedule. On "Week 1," Olander had parenting time Tuesday at 8 p.m. until Thursday at 7 a.m., and then Friday at 7 p.m. until Saturday at 7 a.m. On "Week 2," Olander had parenting time from Wednesday at 7 a.m. until Thursday at 7 a.m., and from Friday evening until Sunday evening. The Parenting Plan also required Olander to provide the transportation during parenting time exchanges, except for on the weekends, when McPhillips was to pick up Macklin at the beginning of her parenting time.

In January 2018, Olander filed a complaint to modify the Paternity Decree and the Parenting Plan, stating that a material change in circumstances had occurred since the entry of the Paternity Decree and the Parenting Plan. Specifically, Olander alleged that Macklin was in need of health insurance, and it was in his best interests that one of the parties be ordered to maintain health insurance for him. Additionally, Olander asserted that "[i]t is in the best interests of [Macklin] to change the parenting time schedule to provide [Olander] with more time with [Macklin]." Olander further alleged that certain terms of the Parenting Plan were no longer relevant, necessary, or workable and that the financial circumstances of the parties had changed to the extent it was necessary to modify Olander's child support obligation.

McPhillips filed a counterclaim seeking to modify the Paternity Decree and the Parenting Plan as well. She requested the court change the Parenting Plan to provide her with more parenting time, provide her with more vacation time with Macklin, and remove Olander's mother's right of first refusal one Saturday a month. The court held a trial on both parties’ complaints to modify in October 2018.

Before trial, the parties reached several agreements regarding their modification requests. Those agreements were read into the record at trial, and consisted of the following: Olander agreed to provide health insurance for Macklin; the parties agreed to use Olander's 2017 tax return for purposes of determining his monthly income; they agreed to divide daycare expenses pursuant to the percentages determined by the child support calculator; they agreed to divide medical and other necessary expenses not covered by insurance; they agreed that each parent would get 2 weeks of vacation time with Macklin per year and, further, that Olander could not displace more than 4 days from McPhillips’ parenting time; and they agreed that neither party would enroll Macklin in extracurricular activities that infringed on the other parent's parenting time.

At trial, the court stated that it was deciding "an issue or two on some of the parenting time." Olander testified that changing the parenting schedule every other week—granting him parenting time from Tuesday evening until Thursday morning each week—would provide more consistency for Macklin. Olander further testified that Wednesday morning exchanges were difficult for Macklin, because it was confusing for him, and that it would be best to not have a different parenting schedule every other week. Olander testified that there had been a problem on Wednesday mornings with Macklin not being ready and fed when he arrived for pick up. Additionally, Macklin is rushed and tired due to getting up earlier for the morning exchange. Olander stated that having only one morning pick up per week would provide more consistency, rather than having two morning exchanges every other week.

McPhillips testified that there were problems in the past with Olander's picking up Macklin on Tuesday evenings, because Olander did not have a consistent work schedule. McPhillips further stated that it was not in Macklin's best interests to have her parenting time begin on Thursday mornings because he is tired and does not want to get ready for school after staying with Olander. Rather, she indicated that her parenting time should begin on Wednesday evening if Olander's was to begin on Tuesday evenings. Her justification was as follows:

If the defendant is — or the plaintiff is allowed his Tuesday night pickup time to not have a morning rush and fight with our child, then I would like to be awarded the same, that I get a night pickup time to get him ready for bed and not have to fight with him in the mornings to get ready for school, so that it's fair for both of us.

The parties also provided testimony regarding health insurance for Macklin. Olander informed McPhillips’ counsel that he would be providing health insurance for Macklin through his employer, but he did not have information stating what the benefits would be, and that he would provide more documentation before the final child support calculation. McPhillips acknowledged that Olander agreed to provide health insurance for Macklin and that Olander could choose the deductible and program that worked for him. Following the testimony, the court stated that it looked for stability and routine in a child's time with each parent. The court then modified Olander's parenting time, stating that it would run from Tuesday evening until Thursday morning every week.

After trial, Olander drafted an order of modification. The order indicated, in relevant part, that he would pay $321 per month in child support, and it included a modified parenting plan (Modified Parenting Plan), which stated that he would have parenting time from Tuesday evening until Thursday morning every week. The Modified Parenting Plan also included a modified transportation clause, which stated that "[u]nless otherwise indicated ... the party beginning parenting time shall provide transportation for the parenting time exchange." Further, the Modified Parenting Plan included the right of first refusal clause, which stated that "[e]very third Saturday, [Olander's] Mother shall have a superior right of first refusal versus [McPhillips] during times in which [Olander] is at his employment."

McPhillips filed an objection to Olander's order of modification. She argued that Olander unilaterally added language modifying the transportation clause and right of first refusal from what was stated in the Parenting Plan. McPhillips further alleged that Olander improperly calculated his child support obligation and that he did not include clauses regarding vacation and extracurricular activities. In November 2018, the district court modified the Paternity Decree and the Parenting Plan (Modification Order). The court's Modification Order established Olander's child support obligation to be $349 per month and ordered Olander to pay 75 percent and McPhillips 25 percent of various expenses. Otherwise, the court adopted Olander's Modified Parenting Plan, including the transportation and right of first refusal clauses.

In December 2018, McPhillips filed a motion to vacate the district court's Modification Order. In her motion, she alluded to a hearing held in chambers on November 27, at which "the judge was pressed for time and the parties attempted to ...

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