Amsden v. Amsden
| Decision Date | 27 April 2021 |
| Docket Number | No. A-20-648.,A-20-648. |
| Parties | TRACY L. AMSDEN, APPELLANT, v. MICHAEL P. AMSDEN, APPELLEE. |
| Court | Nebraska Court of Appeals |
(Memorandum Web Opinion)
Appeal from the District Court for Merrick County: RACHEL A. DAUGHERTY, Judge. Affirmed in part, and in part reversed and remanded for further proceedings.
Steffanie J. Garner Kotik for appellant.
Joseph D. Neuhaus and Gregory M. Neuhaus, of Neuhaus Law Offices, for appellee.
Tracy L. Amsden appeals from the order of the Merrick County District Court enforcing a settlement agreement in a child custody modification action. Pursuant to the agreement, Michael P. Amsden was awarded physical custody of the parties' two children. Tracy was awarded specified parenting time and was ordered to pay child support. We affirm the modification of physical custody and parenting time; however, we reverse the order of child support and remand that issue back to the district court for further proceedings.
Tracy and Michael were divorced in March 2018. Pursuant to the parties' mediated parenting plan, the divorce decree granted the parties joint legal custody of their two children, born in 2004 and 2005, and Tracy was awarded physical custody of the children. The parties' "Regular Time-Sharing" schedule was set forth in paragraph C of the parenting plan and provided the following weekend parenting time:
Weekend parenting time was to begin after school on Friday, at approximately 4 p.m., and end on Sunday at 5 p.m. Michael was to have parenting time with both children every Wednesday from 4 p.m. until Thursday morning when school started, or 8 a.m. if there was no school. Additionally, Michael was to have 6 weeks of parenting time each summer "in no more than 2-week blocks at a time." A holiday parenting time schedule was also established. Michael was ordered to pay child support of $1,103 per month for the two children.
On July 17, 2019, Michael filed a complaint to modify the decree. He alleged a material change of circumstances had occurred since the entry of the decree, namely that Tracy had moved to Aurora, Nebraska, and had several incidents with the police at her home. Michael requested custody of the parties' children, subject to Tracy's reasonable right to parenting time. He alleged that the parties held mediation on July 15, but no agreement was reached.
The matter came on for trial on February 12, 2020. At that time, counsel for both parties confirmed that a stipulation had been reached. The district court asked that the stipulation be read into the record. Tracy's counsel complied, and the following occurred on the record.
The court granted counsel 3 weeks to "submit the paperwork."
On March 3, 2020, Tracy's attorney filed a motion to withdraw, stating that "professional consideration require [sic] termination of the representation of the client."
On March 16, 2020, Michael filed a "Motion to Enforce Settlement Agreement," requesting that the district court enforce the stipulated agreement that was entered into by the parties on the record on February 12. An "Amended Parenting Plan" and child support worksheet were filed on March 23. The amended parenting plan was signed by Michael, but not Tracy.
On April 27, 2020, a hearing was held on both the motion to withdraw as counsel and the motion to enforce the settlement agreement. Tracy and her counsel each appeared telephonically. Michael did not appear, but he was represented by his counsel. The district court began with the motion to withdraw. The court asked Tracy if she had any objection to her counsel withdrawing, and she responded, "No"; the court granted counsel's motion to withdraw. The court then proceeded to the motion to enforce the settlement agreement, during which portion of the hearing Tracy was not represented by counsel. The court asked Michael's counsel if there was any evidence he wished to adduce. Counsel replied, "No." The court then noted that Tracy provided two items to the court that morning, and asked if she was offering those exhibits. Tracy replied, "Yes." When asked if he had any objections to the two exhibits, Michael's counsel stated, The court received the two exhibits, but said it would not consider any information that was not otherwise allowable by the rules of evidence.
Exhibit 1 is a letter from Tracy to the district court dated March 17, 2020, but not signed until April 23. In that letter, Tracy stated that she "was under duress from [her] attorney . . . to go along with that agreement" and she did not believe it was in the best interest of her children. Tracy "felt very rushed and forced to go along with something that [she] did not agree with." She said, "All [my attorney] told me as to why I need to sign over custody to my ex-husband it [sic] is 'that is what the boys want' and 'we are giving Mike time to hang himself' (figuratively) and that the agreement can be amended in the future." Tracy believed it was in the children's best interests to remain living with her. She said that Michael was trying to alienate her from the children by "complaining or 'speaking derogatory'" about her to the children, and that he was inconsistent getting the children for parenting time and showing up for school functions.
Exhibit 2 is an undated and unsigned typed document giving the "reasons" why Tracy should maintain primary custody of the children. In the document, Tracy contends that she provides a "safe, clean, positive environment" for the children, she participates in their lives, and the children have adjusted since moving to Aurora. Tracy contends that even when the parties were married, Michael "chose not to participate most of the time." She also recounts how Michael "left them" "without any warning" and she appears to recount things that happened prior to their divorce or that occurred at some unspecified time. Tracy contends that Michael has mold in his home and a wood stove that "worries" her. She said that the children's clothes smelled "of stale cigarette smoke or just pain [sic] smelled bad" after parenting time with Michael, and that the children told her Michael complained about her to them.
The district court asked the parties if they wished to be heard. Michael's counsel recounted that the parties were present before the court in February 2020 and reached a stipulation with regard to custody and parenting time, that upon questioning by the court both parties agreed to the stipulation, and that the court ordered an amended parenting plan and child support calculation be prepared. Counsel stated that Michael signed the parenting plan and it was submitted without Tracy's signature because she refused to sign it. Counsel asked the court to enforce the amended parenting plan and child support calculation that was submitted.
Tracy argued that "the last time at court, [my attorney] just come up and told me to do this, and he knew that that was not what I believed was in the best interest of our children." Tracy claimed the amended parenting plan was "not...
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