Burkholder v. Carroll

• Decision Date: 31 May 2016
• Docket Number: No. A-14-666.,A-14-666.
• Parties: JASON L. BURKHOLDER, APPELLANT AND CROSS-APPELLEE, v. HEATHER E. CARROLL, FORMERLY KNOWN AS HEATHER E. BURKHOLDER, APPELLEE AND CROSS - APPELLANT.
• Court: Nebraska Court of Appeals

JASON L. BURKHOLDER, APPELLANT AND CROSS-APPELLEE, v. HEATHER E. CARROLL, FORMERLY KNOWN AS HEATHER E. BURKHOLDER, APPELLEE AND CROSS - APPELLANT.

No. A-14-666.

NEBRASKA COURT OF APPEALS

May 31, 2016

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

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).

Appeal from the District Court for Phelps County: STEPHEN R. ILLINGWORTH, Judge. Affirmed as modified.

Chris A. Johnson and Joshua A. Johnson, of Conway, Pauley & Johnson, P.C., for appellant.

Jane F. Langan Mach and Jesse S. Krause, of Rembolt Ludtke, L.L.P., for appellee.

MOORE, Chief Judge, and PIRTLE and BISHOP, Judges.

BISHOP, Judge.

I. INTRODUCTION

Jason L. Burkholder appeals, and Heather E. Carroll (formerly known as Heather E. Burkholder) cross-appeals, from the decree dissolving their short-term marriage entered by the district court for Phelps County. At the time the decree was entered, Jason was 39 years old and Heather was 38. The parties were awarded joint legal custody of their twins (age 5 at the time the decree was entered), and primary physical custody was awarded to Heather. The errors alleged between the two parties pertain to custody, parenting time, child support, child support credit, daycare costs, denial of a motion to recuse, and evidentiary challenges, including challenges to a psychologist's child custody evaluation and testimony.

After consideration of the numerous volumes of testimony and evidence, and the arguments of the parties, we are unable to say the district court abused its discretion on most matters raised, and we affirm the district court's decree of dissolution with only slight modifications related to Jason's child support credit and the children's birthday.

II. PROCEDURAL BACKGROUND

Jason and Heather were married in March 2008 and separated by August 2011. They met online and lived in South Dakota from October to December 2007, at which time they moved to Loomis, Nebraska. Shortly before the July 2008 birth of their twins, Madisen and Taylor, they moved to Holdrege, Nebraska. Jason also had a teenage daughter, Jaleigh, from a prior relationship; her mother had custody.

Jason and Heather were in the Air Force Reserves, and in 2008, they both transferred to the Nebraska Air National Guard (Guard). In addition to Guard duties, Jason worked in construction and at his family's farm; most recently he was self-employed doing construction work. Jason left the Guard during the marriage. Other than Guard duties, Heather did not work for 18 months after the twins were born, but then worked as a certified nursing assistant at Christian Homes in Holdrege, an assisted living home for the elderly, until she moved to Lincoln, Nebraska, in August 2011.

A number of hearings on various motions occurred throughout the proceedings which commenced in August 2011; trial took place over the course of four days in March, September and November 2013. The divorce decree was entered in February 2014. We recount now the procedural aspects of the case which began with Heather filing for a domestic abuse protection order in August 2011.

1. EX PARTE DOMESTIC ABUSE PROTECTION ORDER

In August 2011, Heather was on military active duty orders for 30 days, working in Lincoln. She traveled to Lincoln early on Monday mornings, worked 10- to 12-hour days, "came home as early as possible on Thursdays," and spent Friday and the weekend "with the family." According to her trial testimony, she and Jason were packing for their drill weekend on July 31, 2011 (this was challenged by Jason because he had been discharged from the Guard in May 2011), and she had pressed the wrong uniform for him, and "it got thrown across the kitchen" (presumably by Jason); ceramics fell and shattered. There "was a lot of hollering and yelling and name calling . . . it was horrible." The children awoke from their nap and came downstairs. Jason left and then came back and took the children to his parents. This left Heather without a car; however, Jason's father showed up and provided her another vehicle so she could make her drill weekend. After talking to her commander about the incident, Heather went to Voices of Hope, "a home for battered women," where she "made plans to execute [her] safe exit strategy," and she filled out "the ex parte request."

Exhibit 48 shows that on August 4, 2011, Heather filed a "Petition and Affidavit to Obtain Domestic Abuse Protection Order." Heather's allegations in support of her request for a protection order included two incidents alleged to have occurred in June 2011. One took place in Lincoln at LaQuinta Inn, when Jason was upset "regarding discipline for Madis[e]n," and yelled and calledHeather names in front of the children. Jason "tore the keys" out of Heather's hand when she was trying to leave and take the children away from Jason's behavior. Another incident occurred in Lincoln when "[t]he family was staying at Country Inn & Suites for Jason's brother's wedding reception." Jason threw food at Heather in front of the children while they were at breakfast, then threw her belongings out of the hotel room and pushed her out of the room. Heather rode back to Holdrege with Jason's parents. There is also an undated reference to "many occasions" when Jason "tried to kick [her] out of [her] home," locked her out of the house, had taken her keys, phone, and vehicle, and thrown items at her in front of the children. Heather's testimony about some of these incidents are discussed in more detail later in this opinion. The protection order petition does not contain any specific reference to the July 31, 2011, incident described above which her trial testimony seemed to suggest precipitated her filing for a protection order. After obtaining an ex parte domestic abuse protection order (which granted Heather temporary custody of the children) on August 4, Heather left the marital home with the children and moved to Lincoln on August 8. The next day, August 9, Jason filed a complaint for dissolution of marriage and a motion for "temporaries." Heather filed an answer and counterclaim on September 7, which included a request for temporary custody, child support, and alimony.

2. TEMPORARY ORDER AND DISMISSAL OF PROTECTION ORDER

On September 26, 2011, a temporary order was entered. In addition to directives regarding the development of a parenting plan, mediation, and parenting education, the court awarded temporary legal and physical custody of the children to Heather, and a temporary parenting schedule provided Jason with "[t]wo weekends per month," from Friday at 5:30 p.m. to Sunday at 5:30 p.m., unless the parties otherwise agreed. A holiday parenting schedule was also provided, and the exchange of the children was to take place at an agreed upon location at the Aurora, Nebraska, I-80 interchange. Jason was ordered to pay temporary child support of $836 per month commencing October 1, 2011; the amount was based on monthly income of $3,500 for Jason and $2,400 for Heather, no retirement deductions, and a $142 health insurance premium deduction for Heather. The court denied Heather's request for temporary alimony. Heather was ordered to continue to provide health insurance for Jason and the children. She was ordered to pay the first $480 of uncovered medical costs per child; thereafter, Jason was to pay 53 percent and Heather 47 percent of such uncovered costs. Each party was ordered to pay one-half the daycare costs necessitated by Heather's employment. Jason was ordered to pay $2,000 in temporary attorney fees to the district court clerk for Heather's benefit. Both parties were also "restrained from harassing or disturbing the peace of each other."

The domestic abuse protection order was dismissed by court order on September 26, 2011; the order indicated the relief requested and granted ex parte should be dismissed because it "does not qualify under Neb. Rev. Stat. [§] 42-903 [Reissue 2008] and furthermore would hinder visitation" in the dissolution case. The order further noted that a reciprocal restraining order had been entered in the dissolution case.

3. MOTIONS FOR PSYCHOLOGICAL TESTING

On October 12, 2011, Heather filed a "Motion for Psychological Testing," asking the court to require Jason to participate in a psychological evaluation by Dr. John Meidlinger, a certified clinical psychologist, to determine Jason's psychological condition and its effect on his parenting skills. On October 14, Jason also filed a "Motion for Psychological Testing," asking the court to require Heather to participate in a psychological evaluation by Dr. Meidlinger because the "mental condition and status of [Heather] is material and relevant evidence as to the best interests of the parties' minor children." Jason further requested that the court order

a psychological family assessment of the parties and the minor children in this matter to address the issues of custody, health and welfare of the children, the fitness of each party to parent the minor children, and to make a recommendation with regard to the physical custody of the minor children, visitation and related recommendations affecting the best interests of the minor children.

4. ORDER FOR FAMILY ASSESSMENT BY DR. MEIDLINGER

On February 13, 2012, in addition to addressing a tax dependency exemption issue raised by the parties, the district court ordered a psychological family assessment of the parties and the children with Dr. Meidlinger. The court ordered, "Dr. Meidlinger shall make recommendations to the Court as to legal and physical custody of the minor children and also to visitation."

5. MOTIONS REGARDING TEMPORARY CHILD SUPPORT AND PARENTING TIME

On April 11, 2012, Jason filed a motion to reduce his temporary child support obligation because the amount ordered "was not calculated based on the parties['] present income or the income amounts submitted to the Court at the time...