Weaver v. Weaver
| Decision Date | 11 August 2020 |
| Docket Number | No. A-19-1058.,A-19-1058. |
| Citation | 28 Neb.App. 716,948 N.W.2d 265 |
| Parties | Meaghann Shaw WEAVER, appellee, v. John Glen WEAVER, appellant. |
| Court | Nebraska Court of Appeals |
John A. Kinney and Jill M. Mason, of Kinney Mason, P.C., L.L.O., Omaha, for appellant.
Virginia A. Albers, of Slowiaczek Albers, P.C., L.L.O., Omaha, for appellee.
John Glen Weaver (Glen) filed a complaint to modify the judgment of absolute divorce entered by the District of Columbia Superior Court, which complaint he had registered in the district court for Douglas County, Nebraska. Attached to the decree was a separation and property settlement agreement signed by the parties which gave Meaghann Shaw Weaver physical custody of their minor child. Although the district court found that additional time with Glen would be in the best interests of the child, the court found no material change in circumstances had occurred; thus, it declined to modify the decree. We conclude that the agreement allowed modification of custody without a material change in circumstances. Therefore, because the court found modification would be in the child's best interests, we reverse the order and remand the cause for the district court to reconsider the relief sought by Glen.
Glen and Meaghann were married in 2004 and had a child in 2015. They separated shortly after their child was born, and Meaghann later filed to dissolve the marriage. The parties were living in Washington, D.C., at the time, and they were able to reach an agreement on all aspects of their divorce, including custody of the child, parenting time, and child support. Thus, the District of Columbia Superior Court entered a decree in May 2016. The court incorporated the parties’ agreement into the decree and dissolved the marriage.
Pursuant to the agreement, the parties share joint legal custody of the child, but physical custody was placed with Meaghann subject to Glen's parenting time. The agreement contemplated that both parties would move to Omaha, Nebraska, and set forth increased parenting time for Glen upon relocation to Omaha. The parties moved to Omaha in the summer of 2016. At the time of the modification hearing, Glen had parenting time with the child every other weekend from Friday evening through Sunday evening and every other Wednesday from 4:30 to 6:30 p.m.
Paragraph 4.2 of the agreement is entitled "Modification of Physical Custody" and states:
Upon a material and significant change in circumstance of either party, or in the needs or interests of [the child], either party may request a modification to the physical custody of [the child]. Upon such a request, the parties will discuss the modification in good faith and attempt to agree upon a resolution that is in the best interests of [the child]. If either party believes the terms of this Agreement related to custody are not in [the child's] best interest at a future time, the parties may discuss negotiation of a modification of custody in good faith and attempt to agree upon a resolution that is in the best interests of [the child]. If the parties are unable to agree, they shall follow the protocols for Dispute Resolution Regarding Child Custody set forth herein.
The protocols for "Dispute Resolution Regarding Child Custody" are set forth in paragraph 4.4, which provides:
The parties agree that if a dispute arises in the future about any important parenting issue and they are unable to resolve the dispute through several discussions on their own, they agree to meet with a mutually agreed upon mediator or facilitator, or they will meet with an expert in the field of the dispute (physician, teacher, etc.) to gain more information and advice. Parents share a commitment to resolve any future parenting disagreements via an alternat[ive] dispute resolution process that remains outside of Court. In the event the parties are unable to reach an agreement through this dispute resolution process, including agreements related to modifications in the physical custody schedule as provided in Paragraph 4.1 and 4.2 supra , either party may petition a court of competent jurisdiction for relief, provided however that any court of competent jurisdiction shall apply the then-governing legal standard to such a request for modification of custody.
In February 2017, Glen filed a petition for registration of the foreign decree in the Douglas County District Court. The court entered an order of confirmation in May. In December, Glen filed the operative complaint to modify the decree, asking the court to award him joint physical custody of the child, allocate holidays and vacation time, and recalculate child support.
A modification hearing was held in April 2019, and the evidence established that Glen is a lieutenant colonel in the U.S. Air Force and is currently stationed at Offutt Air Force Base. He owns a home in Omaha, where the child has her own bedroom, and his home is close to a park and a school. Glen was fairly certain he would not be relocated to another city in the 4 months that he has remaining in the military before he is retirement eligible and testified that thereafter, if he were asked to move, he would simply retire from the military.
Glen is allotted no specific holidays or vacation time in the agreement, and he testified that he requested additional parenting time on at least 50 occasions during the 2 years preceding the hearing, but his requests were denied. He also explained that although the agreement allows him to see the child for additional parenting time while she is at daycare, he is precluded from exercising that time in Meaghann's home, and currently, Meaghann's mother provides full-time daycare for the child at Meaghann's home while Meaghann is working. The child informed him that she is attending a preschool program two mornings per week, so he has attended an event at her school on one occasion. Otherwise, he has been unaware of the child's daycare arrangements, other than Meaghann's telling him that the child is "in a safe place."
Glen acknowledged that he agreed to the current custody and parenting time arrangement but explained that the child was an infant when the agreement was created and Meaghann was nursing her. Consequently, his priority was that the child be with Meaghann during that time. He testified that he never contemplated having so little time with the child when she was at daycare and explained that he wants to be an equal parent with equal time with the child, including alternating holidays and vacation time. He proposed a modified decree awarding the parties joint physical custody with a graduated parenting plan so that he has equal time, under a week-on-week-off schedule, by the time the child is 6 years old.
Meaghann works as a pediatric palliative and hospice physician. She testified that she has no objection to Glen's seeing their child as long as it is conducive to the child's development and schedule. She explained that the current schedule is working well for the child and that she is thriving. Nevertheless, she offered to give Glen additional parenting time, while still allowing her to retain physical custody.
In an order following the hearing, the district court found that although it would be in the child's best interests to have more time with Glen, there was insufficient evidence of a material change in circumstances which would warrant modification of the decree. The court therefore denied the complaint to modify. Thereafter, Glen filed a motion to alter or amend, which was denied. Glen now appeals to this court.
Glen assigns that (1) the district court erred in determining that he was required to plead and prove a material change in circumstances, (2) the court erred in determining that he failed to prove a substantial and material change in circumstances had taken place not within the contemplation of the parties at the time of the original judgment, (3) the court erred in failing to determine child custody modifications should be determined on the basis of the best interests of minor children and should have found that the original judgment violated Nebraska's Parenting Act, and (4) administrative dismissal of the first complaint to modify was not a decision on the merits.
Modification of a dissolution decree is a matter entrusted to the discretion of the trial court, whose order is reviewed de novo on the record, and which will be affirmed absent an abuse of discretion by the trial court. Hopkins v. Hopkins , 294 Neb. 417, 883 N.W.2d 363 (2016).
Glen first argues that the district court erred in finding that he was required to plead and prove a material change in circumstances in order to modify custody. Ordinarily, custody of a minor child will not be modified unless there has been a material change in circumstances showing that the custodial parent is unfit or that the best interests of the child require such action. Id. First, the party seeking modification must show a material change in circumstances, occurring after the entry of the previous custody order and affecting the best interests of the child. Id. Next, the party seeking modification must prove that changing the child's custody is in the child's best interests. Id.
The parties’ agreement, which was incorporated into the dissolution decree, addresses custody modification. Paragraph 4.2 states that upon a material and significant change in circumstance of either party, or in the needs or interests of the child, either party may request modification of physical custody. What follows in the remainder of paragraph 4.2 and paragraph 4.4 is the procedure for modifying physical custody. If those efforts are unsuccessful, the parties may turn to the court.
A decree is a judgment, and once a decree for dissolution becomes final, its meaning, including the settlement agreement incorporated therein, is determined as a...
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