Burton v. Schlegel
| Decision Date | 24 May 2016 |
| Docket Number | No. A-15-761.,A-15-761. |
| Parties | DWAYNE BURTON, APPELLEE AND CROSS-APPELLANT, v. ALEXANDRA SCHLEGEL, APPELLANT AND CROSS-APPELLEE. |
| Court | Nebraska Court of Appeals |
(Memorandum Web Opinion)
Appeal from the District Court for Lancaster County: ROBERT R. OTTE, Judge. Affirmed.
Kevin Ruser and Ryan P. Sullivan, of University of Nebraska Civil Clinical Law Program, and Casey Steadman, Jake Harberg, Michael Mills, and Nick Glasz, Senior Certified Law Students, for appellant.
Eddy M. Rodell for appellee.
Dwayne Burton brought this action against Alexandra Schlegel to establish paternity and custody of Easton Burton, Schlegel's minor son. Following a bench trial, the district court for Lancaster County determined that Burton was Easton's biological father and entered a decree addressing custody, parenting time, child support, and childcare expenses, among other issues. Schlegel appeals, and Burton cross-appeals. We affirm.
At an unspecified time prior to Easton's birth, Burton and Schlegel began a relationship while Burton was living in Utah and Schlegel was living in Wyoming. Schlegel became pregnant, and the parties decided that Schlegel, and her three children from previous relationships, would move to Utah to live with Burton. During Schlegel's pregnancy, either Burton accepted a job offer in New Mexico or his job was transferred there, and Schlegel and her children moved with him. Schlegel gave birth to Easton in New Mexico in December 2013. Shortly thereafter, Schlegel and Burton's relationship ended. In February 2014, Schlegel moved with Easton and her other children to Lincoln, Nebraska, to live with her sister. Also in February, Burton returned to Utah, where he subsequently married another woman, with whom he had previously had a daughter out of wedlock.
On June 6, 2014, Burton initiated this action by filing a complaint to establish paternity and custody. On December 15, the district court entered a temporary order awarding Schlegel temporary custody of Easton, granting Burton 2 weeks of parenting time every 2 months, ordering Burton to pay temporary child support of $350 per month, and directing the parties to equally share all work-related childcare expenses.
A bench trial commenced on May 11, 2015. The parties' proposed parenting plans were received into evidence; we discuss the plans first to give context to the parties' testimony that follows.
Burton submitted a proposed parenting plan under which the parties would receive joint legal custody of Easton, and Burton would receive physical custody. The plan proposed that Schlegel would have 2 weeks of parenting time every 2 months until Easton began Kindergarten. At that time, Schlegel would have parenting time during the summer break and spring break, and on alternating holidays. Burton submitted an alternative parenting plan under which the parties would receive joint legal and physical custody, with the parties exercising parenting time on a "two month on/two month off" schedule. The alternative plan did not address parenting time after Easton began school.
Schlegel submitted a proposed parenting plan under which she would receive legal and physical custody of Easton. Under Schlegel's plan, Burton would have 2 weeks of parenting time every 2 months until Easton began preschool in January 2018. At that time, Burton would have 4 weeks of parenting time each summer; the summer parenting time would increase to 8 weeks once Easton turned 8 years old and would continue through Easton's minority.
We now summarize the parties' testimony. Burton called Schlegel as his first witness. She testified that she lived in Lincoln with Easton and her three other children--two sons and a daughter--who ranged in age from 8 to 14. She opposed Burton's proposed parenting plan under which Burton would receive physical custody of Easton, because she had been Easton's primary caregiver since his birth. She also opposed Burton's alternative parenting plan, because she believed it would be inappropriate for a child as young as Easton to be away from his mother, his primary caregiver, for 2 months at a time.
Schlegel admitted she had a pending charge for aggravated driving under the influence (DUI). It was aggravated because her blood alcohol content was over 0.15. Schlegel's license had been revoked, and she was required to use an ignition interlock device to drive. Easton was with Burton at the time of Schlegel's DUI offense. Schlegel had no other arrests as an adult.
Schlegel also admitted that she had a pending case in juvenile court concerning her 14-year-old daughter. The case was set for an adjudication hearing on May 19, 2015. A copy of the juvenile court petition was received into evidence; it alleged that Schlegel's daughter was achild within the meaning of Neb. Rev. Stat. § 43-247(3)(a) (Cum. Supp. 2014) in that she was in significant need of mental health treatment or services, which Schlegel had failed to obtain. Schlegel indicated she was not concerned about the case, because her daughter had been in counseling when the case was filed. Schlegel clarified that her daughter had not been removed from her custody and remained living with her.
Burton testified next. He lived in Utah with his wife, their 5-year-old daughter, and his 11-year-old stepson. Burton explained that he had been in a relationship with the woman who was now his wife prior to being in a relationship with Schlegel. When he and Schlegel ended their relationship, Burton rekindled his relationship with the woman who became his wife. Burton testified that he assisted Schlegel in moving to Lincoln after their relationship ended, because he believed it would be best for Schlegel's other children if they lived there, apparently because they would be closer to their fathers.
Burton testified that he was employed as an industrial construction manager. His employment used to require a lot of travel, but he had acquired a different position with the same company that no longer required him to travel.
Addressing the parenting time he had exercised with Easton, Burton testified that the first period he spent alone with Easton was in February 2014 while Schlegel was transitioning to Lincoln. After that, Burton was working on a project in Wyoming and attempted to have parenting time with Easton. Before Schlegel would allow him to see Easton, she wanted him "to send text messages and e-mails to [his] fiancee [sic] telling her that [he] never wanted to see her again and that [he] was going to attempt to rekindle a relationship with . . . Schlegel." She also wanted Burton to give her $1,500 for an attorney. The parenting time did not take place. Burton later had 1 week of parenting time while working on a project in Colorado; he could not remember the exact dates of that visit.
Burton further testified that later in 2014, he had 9 days of parenting time around Labor Day. He again had 9 days of parenting time in October. During the October parenting time, Easton had to have emergency surgery for "intussusception." Schlegel traveled to Utah while Easton was in the hospital, and, according to Burton, she made inappropriate comments and threats while in the hospital room with Burton and his wife. Burton also had parenting time in December 2014/January 2015, and during the last week of February and the first week of March. Burton's most recent parenting time had ended the Saturday before trial. Schlegel had not been cooperative when it came to parenting time; for example, she had refused to meet Burton at the airport, requiring him to rent a car to pick up Easton.
Burton believed that Easton's emotional, physical, and developmental wellbeing would be "greatly improved" if he resided in Utah. Burton explained that he was "a loving and attentive father" and had "always done everything that [wa]s in the best interest of [his] child and gone far and above anything that was ever asked or expected of [him]." He further explained that he and his wife were building a new 5-bedroom house in Utah that was expected to be completed in October 2015. The closest school would be Excelsior Academy, which the Utah Department of Education rated as 1st in the state in science, 9th in mathematics, and 15th in language arts. Burton's wife was a stay-at-home mother and would care for Easton during the day until he enteredpreschool. Easton would have two sets of grandparents in Utah, as well as seven aunts and uncles and eight cousins, all within a 20-minute drive.
Addressing his travel expenses associated with his parenting time, Burton testified that his average travel costs for his prior two visits was approximately $1,000 per visit. He submitted an exhibit detailing the specific costs. Burton would have to purchase a plane ticket for Easton once he turned 2 years old in December 2015, which would increase the travel costs.
On cross-examination, Burton admitted he had a prior conviction of domestic violence against his first wife, as well as a conviction of theft; both convictions were approximately 9 years old. He also "voluntarily removed himself" from a situation "pending an investigation" into possible child abuse regarding his stepson. The investigation was in the context of a custody dispute between Burton's wife and the stepson's "adopted father." He testified the investigation was "unfounded."
After Burton rested his case, Schlegel testified in her own behalf. She began living in Lincoln at age 10 and attended high school there. Eventually, she moved to Wyoming with her now ex-husband. Her relationship with Burton brought her to Utah and then to New Mexico, until she returned to Lincoln in February 2014. According to Schlegel, she wanted to move to Utah with Burton, but he insisted it would be...
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