Burton v. Schlegel
| Decision Date | 19 January 2021 |
| Docket Number | No. A-19-1208.,A-19-1208. |
| Citation | 954 N.W.2d 645,29 Neb.App. 393 |
| Parties | Dwayne BURTON, appellee, v. Alexandra SCHLEGEL, appellant. |
| Court | Nebraska Court of Appeals |
Adam R. Little, of Ballew Hazen, P.C., L.L.O., Lincoln, for appellant.
Eddy M. Rodell, Lincoln, for appellee.
Alexandra Schlegel (Alexandra) appeals from the order of the Lancaster County District Court which modified a prior custody determination by awarding custody of the parties’ son to his father, Dwayne Burton, who lives in Utah. We affirm.
This case was previously before us on an appeal from an original paternity action. See Burton v. Schlegel , No. A-15-761, 2016 WL 3083232 (Neb. App. May 24, 2016) (). As established in that case, Alexandra and Dwayne are the parents of E.B., born in 2013.
At an unspecified time prior to E.B.’s birth, Alexandra and Dwayne began a relationship while Dwayne was living in Utah and Alexandra was living in Wyoming. Alexandra became pregnant with E.B., and the parties decided that Alexandra, and her three children from previous relationships, would move to Utah to live with Dwayne. During Alexandra's pregnancy, either Dwayne accepted a job offer in New Mexico, or his job was transferred there, and Alexandra and her children moved with him. Alexandra gave birth to E.B. in New Mexico at the end of 2013. Shortly thereafter, Alexandra and Dwayne's relationship ended. In February 2014, Alexandra moved with E.B. and her other children to Lincoln, Nebraska, to live with her sister. Also in February, Dwayne returned to Utah, where he subsequently married another woman, with whom he had previously had a daughter out of wedlock.
In June 2014, Dwayne filed a complaint in the Lancaster County District Court to establish paternity and custody of E.B. A bench trial was held in May 2015. In July, the court entered a written order in which it determined that Dwayne was E.B.’s biological father and granted Alexandra and Dwayne joint legal custody, but Alexandra had the final say in the event of an impasse. The court granted Alexandra physical custody, but concluded it was necessary to "set a firm schedule for the parties to rely upon" given the "history between the parties." Specifically, the court stated it was "not confident that [Alexandra] would be accommodating, flexible and liberal in allowing [Dwayne] parenting time," but that it hoped her attitude The court awarded Dwayne parenting time for the months of February, May, and August each year, plus November in even-numbered years and December in odd-numbered years. The court adopted a parenting plan, consistent with its order, which further provided that "[t]he parties shall be flexible in coordinating the commencement and conclusion of [Dwayne's] parenting time due to [his] work schedule, and the travel requirements," and "[b]oth parents acknowledge the responsibility to exercise and provide visitation and that time is of the essence in exercising and providing visitation." Each parent was directed to "provide the other parent with information and cooperation related to educational achievements and deficiencies of the child." The names of both parents were to appear on all medical and school records, and each parent was required to assist the other parent in obtaining access to such records if requested.
The district court also noted that the parenting time schedule "may not work once the child is of school-age." The court indicated: Dwayne was ordered to pay child support of $400 per month, a deviation of $235 below the guideline amount of support, based on Dwayne's travel expenses associated with parenting time. Each party was responsible for his or her own work-related childcare expenses.
Both parties raised issues on appeal, including Alexandra's claim that the district court erred in holding that "[E.B.’s] turning five years old would constitute a material change of circumstances not within the parties’ anticipation." In May 2016, this court affirmed the judgment of the district court, and our mandate issued on June 28, 2016. See Burton v. Schlegel , No. A-15-761, 2016 WL 3083232 (Neb. App. May 24, 2016) ().
On January 9, 2019, Dwayne filed a complaint for modification. He alleged that since the entry of the order establishing paternity and custody in July 2015, there had been a material change in circumstances, including, but not limited to the following: The order only contemplated a parenting time schedule up until the time E.B. started kindergarten, and he was scheduled to start kindergarten in 2019. Alexandra failed to provide appropriate medical and/or dental care for E.B. Alexandra denied any reasonable request by Dwayne to accommodate minor changes to the parenting time schedule to travel. Alexandra refused to pay her share of E.B.’s medical bills. Alexandra's oldest daughter had been removed from Alexandra's home and was deemed uncontrollable. Alexandra did not notify Dwayne of medical appointments or medical emergencies regarding E.B. Despite being awarded joint legal custody, Alexandra unilaterally made decisions on behalf of E.B. without consulting Dwayne. Alexandra refused to speak to Dwayne about E.B. and told Dwayne that he needed to have his attorney contact her attorney. In his complaint, Dwayne sought full custody of E.B., subject to Alexandra's rights of parenting time. Dwayne also sought permission to remove E.B. from Nebraska to Utah, where Dwayne lived, and he sought an award of child support.
In her answer and "[c]ounter-[c]omplaint," Alexandra denied there had been a material change in circumstances as alleged by Dwayne. However, she alleged there had been a material change in circumstances requiring that the parenting plan be modified, as E.B. was to begin kindergarten in the fall of 2019. She asked the district court to modify the parenting plan and child support order and to award her attorney fees and costs.
The modification hearing was held in October 2019. Several witnesses testified, and numerous exhibits, including text message and email exchanges between the parties, were received into evidence. A summary of the evidence follows.
Dwayne exercised all of his allotted parenting time. The current parenting time schedule would no longer work because E.B. started kindergarten in the 2019-20 school year. The lack of a workable parenting schedule was the main reason why Dwayne filed his complaint for modification. However, Dwayne alleged other reasons why a modification of custody was necessary.
In his complaint, Dwayne alleged that Alexandra failed to provide appropriate medical and/or dental care for E.B. Dwayne testified that E.B. had an "intussusception
," where his intestines were "basically telescoping inside themselves and essentially digesting himself." Dwayne said that E.B.’s "large intestine was within a half an inch of being excreted through his colon"; it was discovered when E.B. was with Dwayne in Utah, and Dwayne confirmed that it was happening prior to the original trial starting in 2015. But Dwayne testified that other health issues had come up since the last order.
In early 2018, they learned that E.B. had been born with a previously undiagnosed heart murmur. The heart murmur was discovered when Dwayne took E.B. to a medical clinic for an infection in his mouth. When E.B. arrived in Utah, he complained about some soreness and swelling in his mouth. When Dwayne looked in E.B.’s mouth, he noticed that a bump on E.B.’s upper gums was swelling and decided to schedule an appointment to get it examined. It turned out that E.B. had been in an accident in Nebraska, where "he had knocked some of his front teeth" and the teeth ended up dying, becoming infected, and needing to be pulled. Dwayne communicated with Alexandra before and after taking E.B. to get his mouth examined, and he also informed her about the discovery of the heart murmur. E.B. was seen by a cardiologist in Utah to determine the severity of his heart murmur. Dwayne informed Alexandra that E.B. would need to have further evaluations before being allowed to play sports and that there were certain sports that he may not ever be able to play. Dwayne testified that Alexandra refused to reimburse him for her half of E.B.’s cardiologist bill. In the email exchange received into evidence, Alexandra's reason for not paying her portion of the bill was that Dwayne took E.B. to an out-of-network provider; she thought E.B. could have waited to be examined by an in-network provider when he returned to Nebraska a few days later. However, at the modification hearing, Alexandra testified that she did not know at the time of her email in 2018 that the bill had already been submitted to Medicaid in Nebraska in addition to Dwayne's insurance company; she agreed that if she is able to speak with Dwayne and resolve what needs to happen with Medicaid, she would be willing to pay her portion of the bill.
Dwayne testified that in early 2019, he had a conversation with Alexandra about whether or not E.B. was caught up on all of the necessary immunizations for school and she said everything was current. However, after subsequently reviewing E.B.’s medical records with his Utah pediatrician, Dwayne learned that E.B.’s immunizations were not current. E.B. got his immunizations at a scheduled appointment with his Utah pediatrician, which Dwayne informed Alexandra of...
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